On March 1, 2022, the Northern District of Illinois issued an opinion in Citizens Insur. Co of Am., & Hanover Insur. Co. v. Thermoflex Waukegan, LLC, 20-CV-05980, 2022 WL 602534 (N.D. Ill. Mar. 1, 2022) addressing whether insurance coverage existed for an employer with respect to its employee’s claims of violations of the Illinois Biometric Information Privacy Act (“BIPA”), 40 ILCS 14/1 et seq.

In Thermoflex, an employee filed a class-action lawsuit against its employer in Illinois state court, alleging that his employer collected its employees’ handprint data in violation of BIPA. The employer collected the handprint data for purposes…
Continue Reading Northern District Injects Confusion as to Whether Insurers Can Rely on the Employment-Related Practices Exclusion to Preclude Coverage for an Employee BIPA Suit

On January 7, 2022, the Northern District issued an opinion regarding whether the claims contained in a lawsuit alleging the violation of the Illinois Biometric Information Privacy Act (“BIPA”), 40 ILCS 14/1 et seq., were covered under a Businessowners’ Liability Policy. An employee of the insured filed a class action complaint in Kankakee County, Illinois, against the insured for violating BIPA. The insured required its employees to use a biometric time clock system to record their time. This system required the insured’s employees to scan their fingerprints to clock in and clock out. This information was then disclosed to the…
Continue Reading Northern District of Illinois Finds Employment-Related Practices Exclusion Applies to BIPA Suit

“Publication” has always been an important consideration under the Personal Injury prong of commercial general liability policies (“CGL”). Likewise, questions related to “publication” are growing in importance in litigation involving Illinois’ Biometric Information Privacy Act (“BIPA”). For example, Illinois courts have previously found that BIPA claims involving “publication” of biometric information to a third party may trigger coverage under the “personal injury” definition of CGL policies. And now, a recent Illinois Court of Appeals decision has found BIPA violations involving “publication” are subject to a one-year statute of limitations. This recent development may beg the question as to how multiple…
Continue Reading Did An Illinois Court Intend To Limit Coverage For BIPA Claims Under CGL Policies To One Year?

In a decision last week entitled Landry’s, Inc. v. The Ins. Co. Of The State Of Pennsylvania, No. 19-20430, 2021 WL 3075937 (5th Circ., July 21, 2021), the Fifth Circuit Court of Appeals found coverage under a CGL Policy for a traditional data breach. More particularly, the Fifth Circuit held the insurer has a duty to defend Landry’s in the litigation that resulted from a breach incident involving credit card information. This case marks a departure from the general premise that there is no coverage to be found under CGL policies for liability resulting from “classic” data breach incidents.
The…
Continue Reading Fifth Circuit Rejects Insurance Carrier’s Arguments As “Salami-Slicing Distinctions” In Finding Coverage For Breach Of Contract Claims Related To Data Breach

On May 20, 2021, the Illinois Supreme Court delivered its opinion in W. Bend Mut. Ins. Co. v. Krishna Schaumburg Tan, Inc., 2021 IL 125978[1] regarding whether the claims contained in a lawsuit alleging the violation of the Biometric Information Privacy Act (“BIPA”) were covered under a business owners’ liability policy.
In the underlying lawsuit, Klaudia Sekura (“Sekura”)[2] filed a class-action suit against Krishna Schaumburg Tan, Inc. (“Krishna”), a tanning salon and franchisee of L.A. Tan for violating BIPA by requiring its customers, including Sekura, to scan their fingerprints without first getting their signed, written release to allow…
Continue Reading Illinois Supreme Court Finds “Publication” In Some BIPA Claims

The Indiana Supreme Court became one of the first state high courts to weigh in and issue a decision on whether crime insurance provides coverage for ransomware attacks. The trial court’s ruling in favor of Continental Western Insurance Co.’s motion for summary judgment upheld the denial of G&G Oil Co.’s bid for coverage. The Supreme Court remanded the case because further fact-finding was necessary to uncover the “fraudulent” nature of the hacker’s actions. It was important to determine how the hacking was conducted. Therefore, until this information is uncovered, neither party was entitled to summary judgment.
The case arose out…
Continue Reading Hack Attack: Indiana Supreme Court Examines Ransomware Coverage 

It is difficult to believe the Illinois Biometric Information Protection Act, 740 ILCS 14, (“BIPA”) has been in effect for more than 10 years since October 3, 2008. Many data collectors are surprised BIPA has been in effect for all these years. Issues related to biometric data have only recently grown into a major concern as the equipment that collects biometric data has evolved to the point that it can be found in a number of Illinois workplaces and businesses. To this point, the central issue in most of the BIPA cases involved allegations that data collectors collected and stored…
Continue Reading New Lawsuit Alleges BIPA Violations Result From Macy’s Reliance On Clearview AI To Scrape Information